Krivonos v. U.S. Department of Justice et al

Filing 18

MEMORANDUM AND ORDER, For the reasons set forth herein, Deft's 15 Motion to Dismiss is denied without prejudice to requesting permission, at the close of discovery, to move for summary judgment pursuant to 5 USC sec. 701(a)(2) and with respec t to Pltff's compensatory damages claims. If Pltff wishes to amend his pleading to specifically allege a legal basis for awarding compensatory damages, he must request a pre-motion conference on or before 10/19/12, in accordance with Section III .A. of this Court's Individual Motion Practices and Rules. Defts' time to answer the complaint is extended to 10/26/12, and will be further extended if Pltff files a pre-motion conference request. (Ordered by Judge Sandra L. Townes on 9/28/12) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BORIS A. KRIVONOS,

BROOKLYN OFF

MEMORANDUM AND O~<i£R

Plaintiff,
-against-

11-CV-2729 (SLT) (LB)

U.S. DEPARTMENT OF JUSTICE; EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW, BOARD
OF IMMIGRATION APPEALS; OFFICE OF THE
GENERAL COUNSEL; JENNIFER J. BARNES,
BAR COUNSEL; U.S. DEPARTMENT OF
HOMELAND SECURITY,
Defendants.

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TOWNES, United States District Judge:
Plaintiff Boris A. Krivonos, an attorney, brings this action on his own behalf, seeking,

inter alia, an order ( 1) declaring that decisions of the Board oflmrnigration Appeals ("BIA'')
which eJCpelled him from practice before the BIA, the Immigration Courts and the U.S.
Department of Homeland Security ("DHS") and denied him reinstatement were arbitrary and
capricious, (2) directing that he be reinstated to practice before these entities, and (3) awarding
him compensatory damages. Defendants now move to dismiss this action, arguing this Court
lacks subject-matter jurisdiction and that Plaintiff has not established "irreparable harm." For the
reasons set forth below, Defendants' motion to dismiss is denied without prejudice to requesting
permission, at the close of discovery, to move for summary judgment pursuant to 5 U.S.C.
§701(a)(2) and with respect to Plaintiff's compensatory damages claims.
BACKGROUND
EJCcept as otherwise indicated, the following facts are drawn from Plaintiff's complaint
and the eJChibits thereto and are assumed to be true for purposes of this motion. Plaintiff, a 1996
graduate of Hofstra University School of Law, is a solo practitioner in Forest Hill, Queens

(Complaint at '1)'1)4, 11). He has worked in this capacity since 1997, the year he was admitted to
the New york State bar and to practice before the United States District Courts for the Southern
and Eastern Districts ofNew York (id. at '1)'1)12-13).
In August 2001, Plaintiff was arrested and charged with, inter alia, conspiring to obtain
immigrant visas through fraudulent means (id. at Ex. 1). According to a felony information filed
by the government, the "visa fraud conspiracy" involved a scheme to increase Plaintiffs clients'
odds of obtaining a "green card" by filing more than one Diversity Immigrant Visa Lottery
("DVL") entry per applicant, in violation ofDVL program requirements that only one entry be
submitted for each applicant (id. at Ex. 2). On April 5, 2002, Plaintiff waived indictment and
pled guilty to conspiracy to defraud the United States in violation of 18 U.S.C. §371 (id., at '1)22).
On September 20, 2002, Plaintiff was sentenced to three years' probation, including four months
of home confinement (id. at '1)23, Ex. 3).
In mid-November 2002, the General Counsel's Office of the Department of Justice's
Executive Office for Immigration Review (the "EOIR"), represented by Bar Counsel Jennifer J.
Barnes, filed a Notice oflntent to Discipline (the "Notice"), recommending that Plaintiff be
expelled from practice before the EOIR in light of his conviction (id. at '1)25, Ex. 5). Although
the Notice advised Plaintiff that he was required to file a written answer within thirty days (id. at
Ex. 5 at '1)8), Plaintiff never did so (id. at '1)26). 1 Accordingly, on January 30,2003, the BIA,
citing to regulations requiring that the recommendations set forth in the Notice be adopted in the

'On January 9, 2003, the U.S. Immigration and Naturalization Service (the "INS") moved
to join the EOIR's action and filed a "Motion for Reciprocal Discipline," requesting that any
disciplinary measures which restricted Plaintiffs ability to practice before the BIA or the
Immigration Courts also apply to Plaintiffs authority to practice before the INS (id. at Ex. 5).
2

absence of an answer, expelled Plaintiff from practice before the BIA, the Immigration Courts
and the INS (id. at Ex. 6).
The Grievance Committee for the Second and Eleventh Judicial Districts (the "Grievance
Committee") also sought to discipline Plaintiff in light of his conviction. In a decision and order
dated March 6, 2003, the Appellate Division of the Supreme Court of the State ofNew York,
Second Department, suspended Plaintiff from the practice of law pursuant toN. Y. Judiciary Law
§90(4)(f) and authorized the Grievance Committee to commence disciplinary proceedings against
Plaintiff (id. at ~28, Ex. 7). In that same decision and order, the Appellate Division appointed a
Special Referee to hear and determine the Grievance Committee's petition (id. at Ex. 7, p. 2).
The United States District Court for the Southern District of New York (the "Southern
District") obtained a copy of the Appellate Division's March 6, 2003, decision and order. On
April4;2003, Judge Rakoff- then the Chairman of the Southern District's Committee on
Grievances - issued an order directing Plaintiff to show cause by April 25, 2003, why he should
not be suspended from practice before the Southern District "contemporaneously with the State's
discipline" (id. at Ex. 8). Judge Rakoffs order stated that unless Plaintiff filed a timely response
to the order to show cause, he would be "suspended effective April 28, 2003 ... until such time
as he [was] reinstated to the practice oflaw in the State ofNew York" (id.). 2
There is nothing in the complaint to suggest that Plaintiff, who interpreted Judge Rakoffs
order as having "suspended Plaintiff from the practice oflaw until such time as he [was]
reinstated in the State of New York" (id. at ~29), ever responded to the Southern District's order
to show cause. However, Plaintiff actively participated in the State court proceedings.
2

Although Plaintiff alleges that he is also admitted to practice before the United States
District Court for the Eastern District of New York (Complaint at ~12), the complaint makes no
allegations regarding disciplinary proceedings in this district.

3

According to Plaintiff, he appeared before the Special Referee on May 22, 2003, and admitted his
conviction (id. at ~30). According to the Special Referee, Plaintiff also expressed "deep remorse
for his terrible mistake," testifying that he only had a few years of experience, was practicing
alone, and did not know that his actions were illegal (id. at Ex. 9, p. 4). In addition, Plaintiff
provided two letters and four live witness, all attesting to Plaintiffs good character (id. at 3-4).
On August 6, 2003, the Special Referee issued his report, finding that the Grievance
Committee had sustained its burden of proving that Plaintiff was guilty of professional
misconduct by virtue of his conviction (id. at 5), but also noting that Plaintiffs repentance
appeared "sincere and remorseful" (id. at 4). Thereafter, the Grievance Committee moved to
confirm the Special Referee's report, but requested only that the Appellate Division "impose
such discipline ... as the court deem[ed] just and proper" (id. at Ex. 10, p. 2). Plaintiff joined in
the Grievance Committee's motion, and asked the Appellate Division to "consider the mitigating
factors when imposing discipline" (id.).
Crediting Plaintiffs claims that he was motivated solely by compassion for his clients
and did not profit from his misconduct, the Appellate Division suspended Plaintiff from the
practice oflaw for one year beginning on February 13, 2004 (id.). The Appellate Division's
opinion and order dated January 12, 2004, expressly provided that Plaintiff could apply for
reinstatement as early as August 13, 2004, and listed the proof that Plaintiff would have to
include with his application for reinstatement (id.).
It is unclear when Plaintiff first moved for reinstatement to the State bar. However,

according to a decision and order issued by the Appellate Division on Aprill8, 2006, Plaintiffs
first motion was dismissed with leave to renew upon submission of the proof set forth in the
Appellate Division's January 12, 2004, opinion and order (id. at Ex. II). Plaintiff's second

4

motion, which included the required paperwork, was referred to the Committee on Character and
Fitness (the "Character Committee") for a report on Plaintiffs fitness to be an attorney (id.).
On June 12,2006, the Character Committee held a hearing on Plaintiffs application (id.
at ~33). Thereafter, the Character Committee issued a report recommending Plaintiff's
reinstatement (id.). In a decision and order dated September 18, 2006, the Appellate Division
adopted that recommendation and reinstated Plaintiff to the State bar (id., Ex. 12). Plaintiff then
applied for reinstatement to the Southern District bar, and was restored to the roll of attorneys
authorized to practice in that district on September 29, 2006 (id. at Ex. 13).
Plaintiff's Petitions for Reinstatement to the Immigration Bar
In October 2006, Plaintiff filed a Petition for Reinstatement with the BIA (id. at Ex. 26).
In that petition, Plaintiff admitted that in 1999 and 2000 he had filed "multiple entries in the
Diversity Visa Lottery for clients pursuing green cards" (id. at 1). Plaintiff stated that he "filed
10 entries for each client, instead of just [one]," and "charged each client 50 dollars" for doing so
(id.), but expressed "deep remorse" for his actions (id. at 3). Plaintiff also noted that he had been

reinstated to practice in the State of New York and the Southern District, had earned 24 hours of
Continuing Legal Education credits from the New York State Bar Association in both 2004 and
2005, and had passed the Multistate Professional Responsibility Examination in March 2005 (id.
at 2-3).
The EOIR's Office of General Counsel (the "OGC") opposed Plaintiffs petition. In a
submission filed by defendant Jennifer J. Barnes on November 7, 2006, the OGC conceded that
Plaintiff, having been reinstated to the New York bar, appeared to meet the definition of an

5

attorney as set forth in 8 C.P.R. §1001.1 (id. at Ex. 28, ~5). However, the OGC noted that,
3

under the applicable regulations, Plaintiff also had "the burden of demonstrating by clear,
unequivocal and convincing evidence that he ... possesses the moral and professional
qualifications required to appear before the [BIA] and the Immigration Courts or [the DHS], and
that his ... reinstatement will not be detrimental to the administration of justice" (id. at ~4,
quoting 8 C.P.R. §J003.107(b)(J)). 4 The OGC argued that Plaintiff had not met this burden,
stating:
Respondent was convicted of a felony count of immigration-related
fraud, in that he improperly filed multiple entries in the Diversity
Visa Lottery program for clients pursuing green cards. He admits
that he filed 10 entries for each client, when each client was only
entitled to one entry. Although Respondent has expressed remorse
for his crime, a crime of this nature cannot be overlooked.
Immigration-related fraud strikes at the heart of this country's
immigration laws and undermines the integrity of the entire
system. Respondent attempted to illegally obtain an advantage for
his own clients, a course of action which simultaneously resulted in
decreasing the chances for other aliens to obtain benefits through
the DVL who truly qualified for the program (id. at ~5).
In a submission dated November 9, 2006, the DHS also opposed Plaintiffs petition, stating that
it concurred with OGC's argument that Plaintiff had not met his burden under 8 C.P.R.
§1003.107(b)(l) (Complaint at Ex. 29).

3

8 C.P.R. § 1001.1 (f) defmes the term "attorney" to mean "any person who is eligible to
practice law in and is a member in good standing of the bar of the highest court of any State,
possession, territory, or Commonwealth of the United States, or of the District of Columbia, and
is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him
in the practice of law."
4

The DHS, which was formally created by the passage of the Homeland Security Act in
November 2002, integrated all or part of22 different Federal departments and agencies,
including the INS.

6

On December 5, 2006, the BIA denied Plaintiff's petition. The BIA held that Plaintiff
met "the regulatory definition of attorney" because he had been reinstated to the practice of law
in the State of New York and in the Southern District (id. at Ex. 20). However, the BIA
concurred with the OGC's view that "immigration-related fraud strikes at the heart of the
country's immigration laws and undermines the integrity ofthe entire system," and held that, in
light of Plaintiff's crime, "he should not be reinstated at this time" (id. ).
The BIA, acting sua sponte, subsequently decided to amend and publish its decision
(Complaint at '1!78, Ex. 21 ). The amendments were not substantive but were characterized by the
BIA as "editorial changes consistent with [the BIA' s] disposition of the case as a precedent" (id.
at Ex. 21, p. 292, n.l). The decision was subsequently published at 24 I&N Dec. 292 (BIA 2004)
and online.
On January 15,2009, Plaintiff filed a second motion for reinstatement (id. at Ex. 30). In
his two-page submission, which contained 16 unnumbered sentences, Plaintiff repeated many of
the same facts set forth in his October 2006 motion, including the fact that he had been reinstated
to the New York bar and to the roll of attorneys eligible to practice in the Southern District.
However, Plaintiff also provided an update regarding his accomplishments and activities. He
noted, inter alia, that he had completed additional Continuing Legal Education courses and
remained in good standing with the New York bar; had obtained a Certificate of Relief from
Disabilities from New York authorities; had been reinstated as a notary public; and had become a
licensed real estate broker. The motion concluded by stating that Plaintiff continued to "feel
deep remorse" for his wrongdoing, and by requesting that he be reinstated to the immigration bar
(id.).

7

The OGC responded to Plaintiffs second motion for reinstatement in much the same way
that it had responded to his first motion. The OGC, again represented by defendant Barnes,
opposed Plaintiffs application on the ground that he had not met the "burden of demonstrating
by clear, unequivocal and convincing evidence that he ... possesses the moral and professional
qualifications required to appear before the [BIA J and the Immigration Courts or the [DHS] ...
(id. at Ex. 31, '1!7 (quoting 8 C.F.R. §1003.107(b)(1))). The OGC also repeated the allegation that

Plaintiff had been convicted of immigration-related fraud, again noting that Plaintiff had
admitted filing "1 0 entries for each client, when each client was only entitled to one entry" (id. at

However, the OGC's response to the second motion differed from its response to the first
motion in two respects. First, the OGC noted that Plaintiff had failed to file an answer to the
OGC's Notice oflntent to Discipline and had, thereby, failed to contest his expulsion (id.).
Second, the OGC reminded the BIA that expulsion is "presumptively permanent" and "the most
serious form of discipline which is reserved for the most egregious types of misconduct" (id.).
The OGC concluded, "an expelled attorney has a very high burden to meet in order to
demonstrate that he ... should be reinstated at all" (id. ).
In a two-page decision dated March 6, 2009, the BIA again concurred with the OGC.
After recounting the circumstances that led to Plaintiffs expulsion and describing his prior
motion, the BIA concluded that Plaintiff had "again fail[ ed] to show that it would be appropriate
for him to be reinstated" to the immigration bar (id. at Ex. 22, p.2). Citing to 8 C.F .R.
§ 1003.101 (a)(1 ), the BIA agreed with the OGC that expulsion was "presumptively permanent,"
and that Plaintiff had not met his burden under 8 C.F.R § 1003.107 of"showing that

8

reinstatement is appropriate at this time, given his serious crime, involving conspiracy to defraud
the government" (id. ).
On April 3, 2009, Plaintiff sought review of the BIA's order in the United States Court of
Appeals for the Second Circuit (id. at "i\115, Ex. 40). In a decision dated October 7, 2009, the
Second Circuit denied Plaintiffs petition for review, noting that it lacked jurisdiction because
Plaintiff was not challenging a final order of removal (see id. at Ex. 40, p.4 (citing 8 U.S.C.
§ 1252(a) and Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006))). However, the Second
Circuit dismissed the petition "without prejudice to the filing of an action for review of the
[BIA' s] order denying ... reinstatement under the Administrative Procedure Act in the
appropriate district court" (id. at 4-5). The Second Circuit expressed no view regarding the
district court's jurisdiction to entertain such an action or the merits ofthe case, stating that such
questions were "best addressed in the first instance by the district court" (id).
The Instant Action
On June 7, 2011 -20 months after the Second Circuit dismissed his petition and more
than 27 months after the BIA denied his second motion for reinstatement- Plaintiff commenced
this action against the United States Department of Justice, the EOIR, the BIA, the OGC, the
DHS and Jennifer J. Barnes- the lawyer who represented the OGC in all of the proceedings
before the BIA relating to Plaintiff. Although portions of Plaintiffs complaint are unclear, it
clearly requests (I) a declaratory judgment, (2) an order compelling his reinstatement and
publication of said order, and (3) compensatory damages in the amount of$24.7 million.
First, the complaint requests an order declaring "Defendants' actions and orders,
published and unpublished, refusing to reinstate Plaintiff to practice before the BIA, Immigration
Courts and DHS, to be arbitrary, capricious, and/or an abuse of discretion within the meaning of
9

5 U.S.C. §706(2)(A)" (Complaint at 28). Although this language does not specify particular
"actions or orders" and appears to encompass all of the defendants named in this action, a section
of the complaint entitled "Defendants' Actions" suggests that Plaintiff is referring to the BIA's
January 30,2003, decision to expel Plaintiff from the practice of immigration law and the BIA's
subsequent decisions denying Plaintiffs petitions for reinstatement (id. at ~~36-37). That same
section of the complaint alleges, inter alia, that these decisions involve "licensing" and constitute
"agency action," an "adjudication," an "order," and a "sanction," as those terms are defined in 5
U.S.C. §551 (id. at ~~38-39), and that Plaintiff, who suffered a "legal wrong" as a result of"each
of Defendants' agency actions," is entitled to judicial review under 5 U.S.C. §702 (id. at ~41).
The complaint further alleges that "[e]ach instance of Defendants' agency action is 'final' within
the meaning of5 U.S.C. §705" and that Plaintiff is "authorized by 5 U.S.C. §703 to seek
declaratory relief' because there is no "special statutory review proceeding available" (id. at
~~42-43).

In addition, the complaint alleges that "[e]ach of Defendants' decisions concerning

Plaintiff amounted to a denial of 'relief within the meaning of 5 U.S.C. §§55l(ll)(A) and
70J(b)(2)" (id. at ~40). However, the complaint does not specifically allege a failure to act on the
part of any of the defendants.
Second, the complaint requests an order (I) directing the "Defendants to reinstate
Plaintiff to the practice of immigration Jaw before the BIA, the Immigration Courts and the
DHS," and (2) directing "Defendants to publish online and in print the decision that Plaintiff be
reinstated" (id. at 28). The complaint does not specifically request an injunction, but contains a
section entitled "Defendants' Irreparable Damage to Plaintiff' (id. at 23-26). This section details
the monetary impact which publication of the BIA' s September 26, 2007, decision had on
Plaintiffs law practice, noting that his revenues declined from at least $228,000 in 2001 to a
10

"current annual level of$34,000" (id. at ~~102, 108). This section also alleges that Plaintiff's
Jaw practice has "no chance of recovery," asserting that "[t]his fact is proved by [his] enormous
and futile efforts at advertising," which "failed to bring about any increase in business" (id. at
~106).

Neither this section nor any other part of the complaint alleges that Plaintiffs losses are
incalculable. To the contrary, the complaint seeks an order directing "Defendants to pay Plaintiff
$2,470,000 in compensatory damages" (id. at 28), which allegedly represents "Plaintiffs
aggregate loss of income between September 2007 and February 2023"- the year Plaintiff will
reach the "retirement age of 67" (id. at ~1 08). 5 However, the complaint does not articulate a
legal basis for recovering money damages from Defendants, all of whom are federal departments,
units thereof, or federal employees.

Defendants' Motion to Dismiss
Defendants- all of whom are represented by a Senior Litigation Counsel in the Office of
Immigration Litigation of the U.S. Department of Justice's Civil Division- now move to dismiss
this action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Defendants' motion, which consists of a Notice of Motion and a seven-page memorandum oflaw
("Defendants' Memo"), contains two numbered points. In the first, Defendants, citing to Norton
v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), and to 5 U.S.C. §706(1), argue that
this Court "lacks subject matter jurisdiction over [Plaintiffs] challenge to the agency's decision
to deny his reinstatement request because the Administrative Procedure Act ('APA') does not
permit judicial review of non-ministerial actions or actions that Congress has delegated to the

'The complaint also alleges that Plaintiff has lost Social Security benefits as a result of his
diminished income, but implies that Plaintiff is not pursuing a claim for loss of Social Security
income (id.).
11

agency" (Defendants' Memo at 4). Defendants acknowledge that Plaintiff is seeking a judgment
declaring Defendants' actions to be "arbitrary, capricious, and/or an abuse of discretion within
the meaning of 5. U.S.C. §706(2)(A)," yet argue that "(b]ecause the agency's decision was
discretionary and non-ministerial, 5 U.S.C. §§701(a), 706(1) does not apply" (Defendants' Memo
at 5).
In their second point, Defendants contend that they have not caused Plaintiff to suffer
"irreparable harm" (id. at 6). This point contains the germ of two separate arguments. First,
Defendants argue that Plaintiffs efforts to blame them for his loss in income "lack a basis in the
facts" (id.). Defendants note that Plaintiff is still free to engage in the practice oflaw in courts
other than the BIA and Immigration Courts, and that "nothing prevents him from building and
establishing his practice and returning his income to its prior level" (id.). Second, quoting

Guitard v. United States Sec y ofNavy, 967 F.2d 737 (2d Cir. 1992), Defendants argue that a loss
of income stemming from damage to reputation and difficulty finding employment is insufficient
to establish irreparable harm (id.).
Defendants' Memo also contains several footnotes, two of which suggest additional
arguments. First, citing to 5 U.S. C. §701(a)(2) and Heckler v. Chaney, 470 U.S. 821, 830
(1985), Defendants assert- without further analysis- that "Congress's failure to provide
guidance to the agency provides a further ground for finding that the AP A does not afford this
Court jurisdiction" (Complaint at 5, n.2). Second, Defendants argue that the AP A does not
waive sovereign immunity with respect to lawsuits seeking monetary relief and that the
complaint asserts no other jurisdictional basis for Plaintiffs claim for compensatory damages (id.
at 5, n.3).

12

In his Affidavit/Affirmation in Opposition to Defendants' Motion to Dismiss, which
incorporates a memorandum of law ("Plaintiffs Response"), Plaintiff spends more time
addressing the issues raised in footnotes than the issues raised in the points themselves. To be
sure, Plaintiff mentions that he is seeking review "under the 'abuse of discretion' standard of
§706(2)(A)," rather than seeking to compel agency action under 5 U.S.C. §706(1) (Plaintiffs
Response at 4). However, Plaintiff devotes considerably more effort to rebutting Defendants'
§70l(a)(2) argument, citing to provisions of8 C.F.R. §1003.107(b) for the proposition that
"Defendants' statute offers judicially manageable standards for judging how and when
Defendants should exercise their discretion in reinstating an attorney to the practice of
immigration law" (Plaintiffs Response at 4).
Similarly, Plaintiff devotes only a few sentences to Defendants' "irreparable harm"
arguments. Plaintiffs Response states:
In their Motion, Defendants refer to cases, which have no bearing
on the instant case, as they discuss "irreparable harm" in the
context of a preliminary injunction. Plaintiff does not seek a
preliminary injunction. Plaintiff seeks compensatory damages ....
(Plaintiffs Response at 4 (internal citation omitted)).
Plaintiffs Response also articulates a theory for recovering compensatory damages which
was not mentioned in Plaintiffs complaint. First, Plaintiff cites to the Federal Tort Claims Act,
28 U.S.C. §1346(b) (the "FTCA"), noting that this statute provides jurisdiction in the federal
courts and waives the sovereign immunity ofthe United States for "claims against the United
States, for money damages ... caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred" (Plaintiffs Response at

13

4). Then Plaintiff asserts that he has a cause of action against the United States for defamation,
alleging that certain portions of the BIA's September 26, 2007, decision were false (id.).
In their Reply to Plaintiffs Opposition to Defendants' Motion to Dismiss ("Defendants'
Reply"), Defendants principally address Plaintiffs arguments relating to the FTC A. Defendants
first assert that Plaintiff has not exhausted his administrative remedies, and that his failure to do
so bars any action under the FTCA (Defendants' Reply at 2) (citing Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994))). Second, Defendants argue that the
FTCA does not apply to claims arising out oflibel, slander, or misrepresentation (id.) (citing 28
U.S.C. §2680(h))). Defendants' Reply does not address any of Plaintiffs other arguments, other
than to reference arguments set forth in Defendants' Memo and to cite Norton for the proposition
that the Court "lacks subject matter jurisdiction over the complaint because the decision was a
non-ministerial agency action over a matter delegated to the agency's discretion" (id.). 6

DISCUSSION
Standard of Review
In considering a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil
Procedure, a court must accept all factual allegations in the complaint as true, and draw all
reasonable inferences in the plaintiffs favor. See Bell At/. Corp. v. Twombly, 550 U.S. 544, 55556 (2007). To survive a motion to dismiss, a complaint must allege sufficient facts "to state a

6

In a letter dated January 23,2012, Plaintiff sought permission to file a sur-reply,
asserting that Defendants' Reply "contains some material misrepresentation [sic] of Plaintiffs
position" (Letter to Hon. Sandra L. Townes from Boris A. Krivonos, dated Jan. 23, 2012). By
order dated January 24, 2012, this Court denied Plaintiffs request without prejudice to filing an
application specifically identifying the material misrepresentations or other grounds for seeking a
sur-reply. To date, Plaintiff has not filed such an application.

14

claim to relief that is plausible on its face." !d. at 570. If a party does not "nudge [his] claims
across the line from conceivable to plausible, [the] complaint must be dismissed." !d.
Because "a Rule 12(b)( 6) motion challenges the facts alleged on the face of the complaint
... or, more accurately, the sufficiency of the statements in the complaint," see Cartee Indus.,
Inc. v. Sum Holding L.P, 949 F.2d 42,47 (2d Cir. 1991) (internal citations omitted), materials
outside the four comers of the complaint are "generally not considered on a motion to dismiss
unless the court treats it as one for summary judgment, giving all the parties a reasonable
opportunity to present relevant evidence under Rule 56." Nicholls v. Brookdale Univ. Hosp.
Med. Ctr., No. 03-CV-6233 (JBW), 2004 WL 1533831, at *2 (E.D.N.Y. July 9, 2004).
However, a court can consider "documents attached to the complaint as an exhibit or
incorporated in it by reference, ... matters of which judicial notice may be taken, or ...
documents either in plaintiffs possession or of which plaintiffs had knowledge and relied on in
bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, ISO (2d Cir. 1993) (citing Cartee
Indus., Inc. v. Sum Holdings L.P., 949 F.2d 42,47-48 (2d Cir. 1991)).
Typically, "a prose complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, Plaintiff, who consistently
refers to himself as "Plaintiff ProSe," is an experienced attorney, licensed to practice in the State
of New York and eligible to practice before the Southern District. Complaint at ,12.
Accordingly, Plaintiffs submissions will be held to the higher standard that applies to
submissions drafted by lawyers. See Gray v. City ofNew York, 10-CV-3039 (SLT)(CLP), 2012
WL 947802, at *10 (E.D.N.Y. Mar. 20, 2012); see also Moore v. City ofNew York, No. 08-CV-

15

2449 (RRM)(LB), 2011 WL 795103, at *1 (E.D.N.Y. Feb. 28, 2011) (even a disbarred attorney's
submissions are not entitled to the degree of liberality given to non-attorney prose plaintiffs).

The Administrative Procedure Act
Although Plaintiff's complaint does not expressly mention the Administrative Procedure
Act or "APA," the pleading is rife with citations to that statute. The complaint specifically
alleges that Plaintiff suffered a "legal wrong" as a result of "agency actions" and "is entitled to
judicial review ... pursuant to 5 U.S.C. §702." Complaint at ~41. Section 702, which is part of
the APA, authorizes suit by "[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute." As
used in this statute, the term "agency action" is defined to include "the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."
5 u.s.c. §551(13).
Plaintiff's complaint further alleges that Defendants' decisions concerning Plaintiff
constitute, inter alia, "agency action," an "order," and a "sanction," and involve "licensing"
within the meaning of various provisions of 5 U.S.C. §551. Complaint at ~~38-39. As used in 5
U.S.C. §702, the terms "rule," "order," "license," "sanction," and "relief'' describe
"circumscribed, discrete categories" of agency action, Norton, 542 U.S. at 62, each of which is
specifically defined in 5 U.S.C. §551. For example, '"order' means the whole or a part of a final
disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a
matter other than rule making but including licensing." 5 U.S.C. §551(6). The term "license" is
defined to include "the whole or a part of an agency permit, certificate, approval, registration,

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7

charter, membership, statutory exemption or other form of permission." 5 U.S.C. §551(8). The
term "sanction" is defined to include "the whole or a part of an agency ... revocation ... or
suspension of a license." 5 U.S.C. §551(10)(F).
In contrast, the terms "equivalent or denial thereof' and "failure to act"- which also
appear in the definition of "agency action"- are not defined in the AP A. However, in Norton,

supra, the Supreme Court provided some guidance regarding the meaning of these terms. The
Supreme Court stated that an "'equivalent ... thereof must also be discrete (or it would not be
equivalent), and a 'denial thereof must be the denial of a discrete listed action (and perhaps
denial of a discrete equivalent)." Norton, 542 U.S. at 62 (parentheses in original). The Supreme
Court also expressed the view that the term "failure to act" is "properly understood as a failure to
take an agency action- that is, a failure to take one of the agency actions (including their
equivalents) earlier defined in §551(13)." !d.
In defining these terms, the Norton Court specifically noted that a "failure to act" is not
the same as a "denial." The Supreme Court explained that a "denial" is "the agency's act of
saying no to a request," while a "failure to act" is "simply the omission of an action without
formally rejecting a request- for example, the failure to promulgate a rule or take some decision
by a statutory deadline." !d. at 63. The Supreme Court also noted that "[t]he APA provides
relief for a failure to act in §706(1)," which authorizes a reviewing court to "compel agency
action unlawfully withheld or unreasonably delayed." !d. at 62 (quoting 5 U.S. C. §706(1)).

'The term "licensing" is separately defmed to include an "agency process respecting the
grant, renewal, denial, revocation, suspension, armulment, withdrawal, limitation, amendment,
modification, or conditioning of a license." 5 U.S.C. §551(9).
17

In Norton, all of the claims at issue involved assertions that an agency, the Bureau of

Land Management, had failed to take action that it was required to take. !d. at 61. Accordingly,
Norton addressed the scope of review permissible under §706(1). The Norton Court emphasized

that "the only agency action that can be compelled under the AP A is action legally required." !d.
at 63 (emphasis in original). After noting that §706(1) was in the nature of mandamus, and that
"[t]he mandamus remedy was normally limited to enforcement of a specific, unequivocal
command, ... the ordering of a precise, definite act ... about which [an official] had no
discretion whatever," id. (internal quotations and citations omitted; brackets in original), the
Norton Court concluded:

As described in the Attorney General's Manual on the APA, a
document whose reasoning we have often found persuasive, ...
§706(1) empowers a court only to compel an agency "to perform a
ministerial or non-discretionary act," or "to take action upon a
matter, without directing how it shall act." Attorney General's
Manual on the Administrative Procedure Act 108 (194 7) (emphasis
added). See also L. Jaffe, Judicial Control of Administrative
Action 372 (1965); K. Davis, Administrative Law§ 257, p. 925
(1951 ). Thus, a claim under §706(1) can proceed only where a
plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take.
Norton, 542 U.S. at 63-64 (internal citations omitted; emphasis in original).

Defendants' First Point
The first point raised in Defendant's Memo relies largely, if not exclusively, on the
above-quoted portion of the Norton opinion. Defendants not only acknowledge that this
language relates to §706(1), but incorrectly attribute the quotes from the Attorney General's
Manual to §706(1). Defendants then argue that "Krivonos cannot plausibly argue that the
agency's decision was 'ministerial' or 'non-discretionary,"' and that "[b]ecause the agency's
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decision was discretionary and non-ministerial, ... [§]706(1) does not apply." Defendants'
Memoat4.
This argument may provide a persuasive basis for dismissing Plaintiffs demands for an
order compelling Defendants' (I) to reinstate Plaintiff to the practice before the BIA,
Immigration Courts and DHS and (2) to publish the decision requiring reinstatement, provided
that these demands constitute requests to compel agency action under §706(1). However, this
argument does not suggest a basis for granting the relief Defendants seek: dismissal of all AP Abased claims for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(l). As
Defendants themselves acknowledge at the very start of the first point, Plaintiff is also seeking a
declaratory judgment under §706(2)(A). Defendants' Memo at 4 ("Krivonos urges the Court to
declare 'Defendants' actions and orders, published and unpublished, refusing to reinstate Plaintiff
to practice before the BIA, Immigration Courts and DHS, to be arbitrary, capricious, and/or an
abuse of discretion within the meaning of 5 U.S.C. §706(2)(A). "'). Since Plaintiffs claims
under the APA are not based exclusively on §706(1), Defendants' Norton-based argument does
not provide a basis for dismissing all of Plaintiffs APA claims.

Defendants' Footnote relating to 5 U.S. C. §701(a)(2)
In a footnote contained within their first point, Defendants allude to a possible basis for
dismissing all of Plaintiffs AP A claims. Defendants assert, "Congress's failure to provide
guidance to the agency provides a further ground for finding that the AP A does not afford this
Court jurisdiction." Defendants' Memo at 5, n.2. However, the footnote provides no support for
this assertion, other than to cite to 5 U.S.C. §70l(a)(2)- which provides that the APA does not
apply if the agency actions at issue are "committed to agency discretion by law" - and to Heckler
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v. Chaney, 470 U.S. 821, 830 (1985)- which held that a law "can be taken to have 'committed'
the decisionmaking to the agency's judgment absolutely" if the statute "is drawn so that a court
would have no meaningful standard against which to judge the agency's exercise of discretion."
Generally, there is a "strong presumption that Congress intends judicial review of
administrative action." Bowen v. Michigan Academy ofFamily Physicians, 476 U.S. 667, 670
(1986); see also Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967) ("[J]udicial review of
a final agency action by an aggrieved person will not be cut off unless there is persuasive reason
to believe that such was the purpose of Congress.").' While 5 U.S.C. §701(a)(2) creates a limited
exception to reviewability when the agency action is committed exclusively to agency discretion
by law, that exception is "very narrow." Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402,410 (1971). "The legislative history of the Administrative Procedure Act indicates that
it is applicable in those rare instances where 'statutes are drawn in such broad terms that in a
given case there is no law to apply."' !d. (quoting S.Rep. No. 752, 79th Cong., 1st Sess., 26
(1945)).
Defendants have offered nothing to suggest that the presumption of reviewability is
inapplicable, or that the very narrow exception set forth in §701(a)(2) is applicable, to this action.
Indeed, the entirety of Defendants' argument consists of a single, conclusory sentence contained
in a footnote, accompanied by two citations which establish basic principles but do not relate to
the facts of this case. This Court cannot grant dismissal of this action on what amounts to little
more than a headnote. Accordingly, Defendants' motion to dismiss pursuant to §701(a)(2) is
8

This presumption does not apply to all agency actions. See Chaney, 470 U.S. at 831
(creating a presumption of non-reviewability for agency decisions not to undertake certain
enforcement actions).
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denied. To the extent that Defendants can offer any analysis in support ofthis argument, they
can request permission to renew this argument upon a motion for summary judgment.
Defendants' Second Point
The second numbered point in Defendants' Memo relates to that section of Plaintiffs
complaint entitled, "Defendants' Irreparable Damage to Plaintiff." Complaint at 23-26.
Defendants apparently construe this section as attempting to allege irreparable harm, for they
argue, inter alia, that "courts have routinely found that plaintiffs analogous to Krivonos's
position have failed to establish irreparable harm." Defendants' Memo at 6. However,
Defendants are uncertain about the claim to which the "irreparable harm" allegations relate,
arguing that Plaintiff "is not entitled to relief for any claims stemming from allegations that
Defendants' actions have caused him 'irreparable harm.'" !d.
Defendants' assumption that Plaintiff meant to allege "irreparable harm" is not without
basis. The ad damnum clause of Plaintiffs complaint appears to request injunctive relief: an
order (I) directing "Defendants to reinstate Plaintiff to the practice of immigration law before the
BIA, the Immigration Courts and the DHS," and (2) directing "Defendants to publish online and
in print the decision that Plaintiff be reinstated." Complaint at 28. In order to obtain either
preliminary or permanent injunctive relief, Plaintiff would need to establish "irreparable harm."
To obtain a preliminary injunction, a party must show "that I) absent injunctive relief, it will
suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there
are sufficiently serious questions going to the merits to make them a fair ground for litigation,
and that the balance of hardships tips decidedly in favor of the moving party." Otokoyama Co.
Ltd. v. Wine ofJapan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999). Similarly, "[a] permanent
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injunction is appropriate where the party seeking the injunction has succeeded on the merits and
'show[s] the absence of an adequate remedy at law and irreparable harm if the relief is not
granted."' Patsy's Italian Restaurant, Inc. v. Banas, 658 F.3d 254, 272 (2d Cir. 2011) (quoting

Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006)).
In his responsive papers, however, Plaintiff expressly denies that he is seeking a
preliminary injunction. Rather, he implies that the section entitled "Defendants' Irreparable
Damage to Plaintiff' pertains solely to his request for compensatory damages. In light of these
representations, it is unnecessary to address Defendants' second point. However, this Court
notes that if Plaintiff were seeking injunctive relief, his allegations would be inadequate to
establish irreparable harm. "Where there is an adequate remedy at law, such as an award of
money damages, injunctions are unavailable except in extraordinary circumstances." Faiveley

Transport Malmo AB v. Wabtec Corp., 559 F.3d II 0, 118 (2d Cir. 2009) (quoting Moore v.
Canso!. Edison Co. of NY, 409 F.3d 506,510 (2d Cir. 2005)). The section of Plaintiffs
complaint entitled, "Defendants' Irreparable Damage to Plaintiff," asserts that the harm Plaintiff
has suffered as a result of Defendants' actions can be quantified with some precision and is
compensable by money damages.

Defendants' Footnote Relating to Compensatory Damages
In a footnote contained in the first point of Defendants' Memo, Defendants seek to
dismiss Plaintiffs demand for compensatory damages. What little argument is contained in that
footnote implies that Plaintiffs complaint fails to state a claim for money damages because it
"asserts no waiver of sovereign immunity or jurisdictional basis." Defendants' Memo at 5, n. 3.
The footnote also suggests that this claim cannot be grounded in the AP A, citing authority for the
22

proposition that 5 U.S.C. §702 waives sovereign immunity only with respect to lawsuits
requesting relief other than money damages. !d. (citing Adeleke v. United States, 355 U.S. 144,
152 n. 7 (2d Cir. 2004)).
In his response, Plaintiff does not argue that his pleading is sufficient. Rather, he alleges
that the FTCA affords a basis for collecting money from Defendants for defamatory statements
contained in the BIA's September 26, 2007, decision. Plaintiffs Response at 4. Plaintiffs
complaint, however, does not mention either the FTCA or defamation.
In their reply papers, Defendants argue two entirely new grounds for dismissal. First,
they argue that exhaustion of administrative remedies is a jurisdictional prerequisite for filing an
FTCA claim and that Plaintiff has not exhausted such remedies. Defendants' Reply at 2.
Second, Defendants argue that the FTCA excepts defamation claims from its waiver of sovereign
immunity. !d. (citing 28 U.S.C. §2680(h)).
Because Defendants' claim that Plaintiff has failed to state a claim for compensatory
damages is raised only in a footnote in Defendants' Memo, this Court declines to grant the relief
Defendants seek at this juncture. Nothing herein shall preclude Defendants from requesting
permission to raise this argument in a motion for summary judgment. However, Plaintiff shall
have until October 19,2012, in which to request permission to move to amend his pleading to
specifically allege a legal basis for awarding compensatory damages. Any such request shall be
made in accordance with Sectioh liLA of the Individual Motion Practices & Rules of Judge
Sandra L. Townes (available at www.nyed.uscourts.gov/pub/rules/SLT-MLR.pdf).
This Court also will not address Defendants' arguments relating to the FTCA at this
juncture. However, before seeking permission to amend his complaint to add claims under the
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FTCA, Plaintiff may wish to research the exhaustion requirements under the FTCA, see, e.g.,

McNeil v. United States, 508 U.S. 106, 113 (1993); Adeleke, supra, and whether the FTCA
permits a plaintiff to sue for money damages arising from defamation. See Siegert v. Gilley, 500

u.s. 226,233-34 (1991).
CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss is denied without
prejudice to requesting permission, at the close of discovery, to move for summary judgment
pursuant to 5 U.S.C. §701(a)(2) and with respect to Plaintiffs compensatory damages claims. If
Plaintiff wishes to amend his pleading to specifically allege a legal basis for awarding
compensatory damages, he must request a pre-motion conference on or before October 19, 2012,
in accordance with Section liLA of this Court's Individual Motion Practices & Rules.
Defendants' time to answer the complaint is extended to October 26, 2012, and will be further
extended if Plaintiff files a pre-motion conference request.

SO ORDERED.

-~

SANDRA [. TOWNES
United States District Judge
Dated: September 28,2012
Brooklyn, New York

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